82_FR_50518 82 FR 50309 - Order Establishing a New De Minimis Threshold Phase-In Termination Date

82 FR 50309 - Order Establishing a New De Minimis Threshold Phase-In Termination Date

COMMODITY FUTURES TRADING COMMISSION

Federal Register Volume 82, Issue 209 (October 31, 2017)

Page Range50309-50311
FR Document2017-23660

The Commodity Futures Trading Commission (``Commission'' or ``CFTC'') is issuing an order (``Order''), pursuant to the Commission regulation establishing the de minimis exception to the swap dealer definition, to establish December 31, 2019 as the new de minimis threshold phase-in termination date.

Federal Register, Volume 82 Issue 209 (Tuesday, October 31, 2017)
[Federal Register Volume 82, Number 209 (Tuesday, October 31, 2017)]
[Rules and Regulations]
[Pages 50309-50311]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-23660]



========================================================================
Rules and Regulations
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents 
having general applicability and legal effect, most of which are keyed 
to and codified in the Code of Federal Regulations, which is published 
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents. 

========================================================================


Federal Register / Vol. 82, No. 209 / Tuesday, October 31, 2017 / 
Rules and Regulations

[[Page 50309]]



COMMODITY FUTURES TRADING COMMISSION

17 CFR Part 1


Order Establishing a New De Minimis Threshold Phase-In 
Termination Date

AGENCY: Commodity Futures Trading Commission.

ACTION: Order.

-----------------------------------------------------------------------

SUMMARY: The Commodity Futures Trading Commission (``Commission'' or 
``CFTC'') is issuing an order (``Order''), pursuant to the Commission 
regulation establishing the de minimis exception to the swap dealer 
definition, to establish December 31, 2019 as the new de minimis 
threshold phase-in termination date.

DATES: Issued by the Commission on October 26, 2017.

FOR FURTHER INFORMATION CONTACT: Matthew Kulkin, Director, 202-418-
5213, [email protected]; Erik Remmler, Deputy Director, 202-418-7630, 
[email protected]; or Rajal Patel, Associate Director, 202-418-5261, 
[email protected], Division of Swap Dealer and Intermediary Oversight, 
Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st 
Street NW., Washington, DC 20581.

SUPPLEMENTARY INFORMATION: 

I. Background

    The Dodd-Frank Wall Street Reform and Consumer Protection Act 
(``Dodd-Frank Act'') \1\ directed the CFTC and the U.S. Securities and 
Exchange Commission to jointly further define the term ``swap dealer'' 
and to include therein a de minimis exception.\2\ The CFTC's further 
definition of swap dealer is provided in Sec.  1.3(ggg).\3\ The de 
minimis exception therein provides that a person shall not be deemed to 
be a swap dealer unless its swap dealing activity exceeds an aggregate 
gross notional amount threshold of $3 billion (measured over the prior 
12-month period), subject to a phase-in period during which the gross 
notional amount threshold is set at $8 billion.\4\ Absent further 
action by the Commission, the phase-in period is scheduled to terminate 
on December 31, 2018, at which time the de minimis threshold would 
decrease to $3 billion.\5\
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    \1\ Public Law 111-203, 124 Stat. 1376 (2010). The text of the 
Dodd-Frank Act can be accessed on the Commission's Web site, at 
www.cftc.gov.
    \2\ See Dodd-Frank Act, sections 712(d) and 721. The definition 
of ``swap dealer'' can be found in section 1a(49) of the Commodity 
Exchange Act and as further defined in Sec.  1.3(ggg). 7 U.S.C. 
1a(49) and 17 CFR 1.3(ggg). The Commodity Exchange Act is at 7 
U.S.C. 1, et seq. (2014), and is accessible on the Commission's Web 
site at www.cftc.gov.
    \3\ 17 CFR 1.3(ggg).
    \4\ See 17 CFR 1.3(ggg)(4). See also Further Definition of 
``Swap Dealer,'' ``Security-Based Swap Dealer,'' ``Major Swap 
Participant,'' ``Major Security-Based Swap Participant'' and 
``Eligible Contract Participant'', 77 FR 30596 (May 23, 2012). This 
Order does not impact the de minimis threshold for swaps with 
``special entities'' as defined in the Commodity Exchange Act, 
section 4s(h)(2)(C). 7 U.S.C. 6s(h)(2)(C).
    \5\ Order Establishing De Minimis Threshold Phase-In Termination 
Date, 81 FR 71605, 71607 (Oct. 18, 2016).
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    When Sec.  1.3(ggg) was adopted, establishing the $3 billion de 
minimis exception, the Commission explained that there was little swap 
dealing data available that could be used to guide it in setting a 
threshold level. The Commission expected that the implementation of 
swap data reporting may enable reassessment of the de minimis 
exception.\6\ Accordingly, in Sec.  1.3(ggg), the Commission directed 
CFTC staff to issue a report, after a specified period of time, on 
topics relating to the de minimis exception ``as appropriate, based on 
the availability of data and information.'' \7\ Section 1.3(ggg) 
further provides that after giving due consideration to the report and 
any associated public comment, the Commission may by order establish a 
termination date for the phase-in period or propose through rulemaking 
modifications to the de minimis exception.\8\
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    \6\ See 77 FR at 30634, 30640.
    \7\ See 17 CFR 1.3(ggg)(4)(ii)(B).
    \8\ See 17 CFR 1.3(ggg)(4)(ii)(C).
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    Staff issued for public comment the Swap Dealer De Minimis 
Exception Preliminary Report on November 18, 2015 (``Preliminary 
Report'').\9\ After consideration of the public comments received, and 
further data analysis, staff issued the Swap Dealer De Minimis 
Exception Final Staff Report \10\ on August 15, 2016 (``Final Report,'' 
and together with the Preliminary Report, the ``Staff Reports''). The 
Staff Reports analyzed the available swap data in conjunction with 
relevant policy considerations to assess alternative de minimis 
threshold levels and other potential changes to the de minimis 
exception. The Staff Reports noted that the swap market data available, 
while much improved since Sec.  1.3(ggg) was first adopted, was still 
somewhat limited in providing detailed information for assessing 
appropriate changes to the de minimis exception. For example, notional 
amounts could only be analyzed for the interest rate and credit default 
swap asset classes because, at the time, sufficient reliable notional 
data was not available for the other asset classes. As a further 
example, some of the data analyzed for the Staff Reports had 
significant quality issues. One of the ``key issues'' identified in the 
Final Report for Commission consideration was whether to delay 
reduction of the de minimis threshold to allow efforts to improve data 
quality to progress so that the Commission could better determine the 
appropriate de minimis threshold.\11\
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    \9\ Available at http://www.cftc.gov/idc/groups/public/@swaps/documents/file/dfreport_sddeminis_1115.pdf.
    \10\ Available at http://www.cftc.gov/idc/groups/public/@swaps/documents/file/dfreport_sddeminis081516.pdf.
    \11\ Final Report at 26.
---------------------------------------------------------------------------

    In October 2016, the Commission issued an order, pursuant to Sec.  
1.3(ggg)(4)(ii)(C)(1), establishing December 31, 2018 as the de minimis 
threshold phase-in termination date, thereby extending the original 
phase-in period by one year (``October 2016 Order'').\12\ In the order, 
the Commission stated that the phase-in period extension provides 
additional time for further information to become available to more 
effectively reassess the de minimis exception.\13\ Given the twelve 
month lookback for calculating the swap dealing notional amount, a firm 
may need to start tracking its swap dealing activity on January 1, 2018 
to determine whether its dealing activity would require it to register 
when the phase-in period ends on December 31, 2018.
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    \12\ 81 FR 71605; 17 CFR 1.3(ggg)(4)(ii)(C)(1).
    \13\ 81 FR at 71607.

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[[Page 50310]]

II. New Phase-In Termination Date

    As contemplated by the October 2016 Order, significant strides are 
being made in updating, improving, and reassessing the available swap 
data regarding the swap marketplace in a more granular manner. Though 
this data analysis is ongoing, the Commission believes that it will in 
the near future have more detailed data analysis to inform its 
consideration of possible modifications to the de minimis 
exception.\14\ However, any such modifications, if implemented, would 
not become effective until some point in 2018, when the Commission 
completes the proposal, public comment, and final rule amendment 
process pursuant to the Administrative Procedure Act.
---------------------------------------------------------------------------

    \14\ The Commission also notes that the continuing efforts by 
the Division of Market Oversight to improve data quality have 
improved data analysis capabilities.
---------------------------------------------------------------------------

    This timing creates some uncertainty for currently unregistered 
swap dealers that may be subject to registration if the $3 billion de 
minimis threshold goes into effect on December 31, 2018. Such entities 
will not know what de minimis exception changes, if any, may become 
effective. Given this uncertainty, firms that might be subject to 
registration if the de minimis threshold decreases to $3 billion would 
need to start managing, and perhaps altering, their swap dealing 
activity starting in January 2018 to remain below the $3 billion 
threshold by December 31, 2018. Further, some firms might begin 
analyzing and adjusting their dealing activities prior to January 2018 
if they do not want to be subject to registration. Such changes in 
behavior could lead to reduced competition, liquidity, and efficiency 
in the swap market, which may cause disruptions for the firms and their 
swap counterparties that might be unnecessary depending on the outcome 
of the continuing assessment of the de minimis exception.
    Additionally, the Commission notes that a year's delay would 
provide additional time for the new Commissioners \15\ and the new 
Director of the Division of Swap Dealer and Intermediary Oversight, all 
of whom only joined the Commission in the last two months, to better 
familiarize themselves with the issues relevant to the de minimis 
exception and results of the swap data analysis currently underway.
---------------------------------------------------------------------------

    \15\ See Brian Quintenz Sworn In as a Commissioner of the U.S. 
Commodity Futures Trading Commission (Aug. 15, 2017), http://www.cftc.gov/PressRoom/PressReleases/pr7602-17; Rostin Behnam Sworn 
In as a Commissioner of the CFTC (Sep. 6, 2017), http://www.cftc.gov/PressRoom/PressReleases/pr7610-17. Additionally, there 
are currently two additional Commission vacancies that may be filled 
soon.
---------------------------------------------------------------------------

    Accordingly, the Commission believes that it is prudent to extend 
the phase-in period by one year. This extension will provide additional 
time for Commission staff to conduct data analysis regarding the de 
minimis exception, give market participants further clarity regarding 
when they will need to begin preparing for a change, if any, to the de 
minimis exception, and provide additional time for new Commissioners 
and staff to become better apprised of issues relevant to this topic.

III. Conclusion and Order

    For the reasons discussed above, and pursuant to its authority 
under Sec.  1.3(ggg)(4)(ii)(C)(1), the Commission is establishing 
December 31, 2019 as the new termination date for the de minimis 
threshold phase-in period. The Commission notes that prior to the 
termination of the phase-in period, the Commission plans to take 
further action regarding the de minimis threshold.

IV. Related Matters

A. Paperwork Reduction Act

    The Paperwork Reduction Act (``PRA'') \16\ imposes certain 
requirements on Federal agencies in connection with their conducting or 
sponsoring any collection of information as defined by the PRA. This 
Order does not impose any new recordkeeping or information collection 
requirements, or other collections of information that require approval 
of the Office of Management and Budget under the PRA.
---------------------------------------------------------------------------

    \16\ 44 U.S.C. 3501 et seq.
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B. Cost-Benefit Considerations

    Section 15(a) of the Commodity Exchange Act (``CEA'') requires the 
Commission to consider the costs and benefits of its actions before 
promulgating a regulation under the CEA or issuing certain orders.\17\ 
Section 15(a) further specifies that the costs and benefits shall be 
evaluated in light of five broad areas of market and public concern: 
(i) Protection of market participants and the public; (ii) efficiency, 
competitiveness, and financial integrity of futures markets; (iii) 
price discovery; (iv) sound risk management practices; and (v) other 
public interest considerations. In this section, the Commission 
considers the costs and benefits resulting from its determinations with 
respect to the Section 15(a) factors.
---------------------------------------------------------------------------

    \17\ 7 U.S.C. 19(a).
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1. Background
    As discussed above, Sec.  1.3(ggg)(4)(i) provides an exception from 
the swap dealer definition for persons who engage in a de minimis 
amount of swap dealing activity. Currently, under Sec.  1.3(ggg)(4)(i), 
a person shall not be deemed to be a swap dealer unless its swap 
dealing activity exceeds an aggregate gross notional amount threshold 
of $3 billion (measured over the prior 12-month period), subject to a 
phase-in period during which the gross notional amount threshold is set 
at $8 billion.\18\ The phase-in period would have terminated on 
December 31, 2018, and the de minimis threshold would have decreased to 
$3 billion, absent this Order.\19\ This would have required firms to 
start tracking their swap activity beginning January 1, 2018 to 
determine whether their dealing activity over the course of that year 
would require them to register as swap dealers.
---------------------------------------------------------------------------

    \18\ 17 CFR 1.3(ggg)(4)(i). See generally 77 FR at 30626-35. See 
also note 4, supra.
    \19\ See 81 FR 71605.
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    The $3 billion threshold, which, absent this Order, would be 
effective on December 31, 2018, sets the baseline for the Commission's 
consideration of the costs and benefits of this Order.\20\ Accordingly, 
the Commission considers the costs and benefits that will result from 
extending the phase-in period.
---------------------------------------------------------------------------

    \20\ See 77 FR at 30702-14 (discussing the cost-benefit 
considerations with regard to the final swap dealer definition); 81 
FR at 71607.
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2. General Cost and Benefit Considerations
    There are several policy objectives underlying swap dealer 
regulation and the de minimis exception to the swap dealer definition. 
The primary policy objectives of swap dealer regulation include the 
reduction of systemic risk, increased counterparty protections, and 
market efficiency, orderliness, and transparency.\21\ Registered swap 
dealers are subject to a broad range of requirements, including, inter 
alia, registration, internal and external business conduct standards, 
reporting, recordkeeping, risk management, posting and collecting 
margin, and chief compliance officer designation and responsibilities. 
As noted in the Sec.  1.3(ggg) adopting release, generally, the lower 
the de minimis threshold, the greater the number of entities that are 
subject to these requirements, which could decrease systemic risk, 
increase counterparty protections, and promote swap market efficiency, 
orderliness, and transparency.\22\
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    \21\ 77 FR at 30628-30, 30707-08.
    \22\ Id. at 30628-30, 30703, 30707-08.

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[[Page 50311]]

    The Commission also considers policy objectives furthered by a de 
minimis exception, which include regulatory certainty, allowing limited 
ancillary dealing, encouraging new participants to enter the swap 
dealing market, and regulatory efficiency.\23\ Generally, the higher 
the de minimis threshold, the greater the number of entities that are 
able to engage in dealing activity without being required to register, 
which could increase competition and liquidity in the swap market.\24\ 
In addition, because competitive markets may be more efficient, a 
higher de minimis threshold might improve swap market efficiency. 
Further, the Commission notes that it has been suggested that a higher 
threshold could allow the Commission to expend its resources on 
entities with larger swap dealing activities warranting more oversight. 
An alternative view is that the de minimis threshold should be set 
based on policy independent of consideration of the Commission's 
resources.
---------------------------------------------------------------------------

    \23\ Id. at 30628-30, 30707-08.
    \24\ Alternatively, the Commission notes that a lower de minimis 
threshold may lead to potential changes in market behavior, 
including, for example, product innovation.
---------------------------------------------------------------------------

    Extending the phase-in period by one year will delay realization of 
the policy benefits associated with the $3 billion de minimis 
threshold, but will also extend the policy benefits associated with a 
higher de minimis threshold. The additional time to adjust to the $3 
billion de minimis threshold also would potentially increase regulatory 
certainty for some market participants. Given that the de minimis 
exception is subject to a 12-month look-back, extending the phase-in 
period to December 31, 2019 would allow entities that would potentially 
have to register as swap dealers additional time to adjust their 
activities and prepare for the compliance obligations related to swap 
dealer registration.
3. Section 15(a)
    Section 15(a) of the CEA requires the Commission to consider the 
effects of its actions in light of the following five factors. This 
Order will delay the potential costs and benefits discussed below by 
one year.
(i) Protection of Market Participants and the Public
    Providing regulatory protections for swap counterparties who may be 
less experienced or knowledgeable about the swap products offered by 
swap dealers (particularly end-users who use swaps for hedging or 
investment purposes) is a fundamental policy goal advanced by the 
regulation of swap dealers. The Commission recognizes that the $3 
billion de minimis threshold may result in more entities being required 
to register as swap dealers compared to an $8 billion threshold, 
thereby extending counterparty protections to a greater number of 
market participants. Further, swap dealer regulation is intended to 
reduce systemic risk in the swap market because registered swap dealers 
are subject to a broad range of requirements, including, inter alia, 
requirements applicable to internal and external business conduct 
standards, reporting and recordkeeping, risk management, posting and 
collecting margin, and chief compliance officer designation and 
responsibilities. Pursuant to the Dodd-Frank Act, the Commission has 
proposed or adopted regulations for swap dealers--including margin and 
risk management requirements--designed to mitigate the potential 
systemic risk inherent in the swap market. Therefore, the Commission 
recognizes that a lower de minimis threshold may result in more 
entities being required to register as swap dealers, thereby 
potentially further reducing systemic risk.
(ii) Efficiency, Competitiveness, and Financial Integrity of Markets
    Other goals of swap dealer regulation are swap market transparency, 
orderliness, and efficiency. These benefits are achieved through 
regulations requiring, for example, swap dealers to keep trading 
records and report trades, provide counterparty disclosures about swap 
risks and pricing, and undertake portfolio reconciliation and 
compression exercises. Accordingly, the Commission notes that a lower 
de minimis threshold may have a positive effect on the efficiency and 
integrity of the markets.
    However, the Commission also recognizes that the efficiency and 
competitiveness of the swap market may be negatively impacted if the de 
minimis threshold is set too low by potentially increasing barriers to 
entry that may stifle competition and reduce swap market efficiency. 
For example, if entities choose to reduce or cease their swap dealing 
activities so that they would not need to register if the de minimis 
threshold decreases to $3 billion, the number or availability of market 
makers for swaps may be reduced, which could lead to increased costs 
for potential counterparties and end-users through having to pay higher 
spreads when undertaking swap transactions or foregoing the benefits of 
engaging in certain swap transactions that they would otherwise have 
undertaken.
(iii) Price Discovery
    The Commission preliminarily believes that a $3 billion de minimis 
threshold may discourage participation of new swap dealers and 
ancillary dealing. If there are fewer entities engaged in dealing, 
there may be a negative effect on price discovery.
(iv) Sound Risk Management
    The Commission notes that a $3 billion de minimis threshold could 
lead to better risk management practices because a greater number of 
entities would be required by regulation to: (i) Develop and implement 
detailed risk management programs; (ii) adhere to business conduct 
standards that reduce operational and other risks; and (iii) satisfy 
margin requirements for uncleared swaps.
(v) Other Public Interest Considerations
    The Commission has not identified any other public purpose 
considerations for this Order.

C. Antitrust Considerations

    Section 15(b) of the CEA requires the Commission to take into 
consideration the public interest to be protected by the antitrust laws 
and endeavor to take the least anticompetitive means of achieving the 
objectives of the CEA, in issuing any order or adopting any Commission 
rule or regulation. The Commission does not anticipate that the Order 
discussed herein will result in anti-competitive behavior.

V. Order

    In light of the foregoing, it is ordered, pursuant to the 
Commission's authority under Sec.  1.3(ggg)(4)(ii)(C)(1), that the de 
minimis threshold phase-in termination date shall be December 31, 2019.
    The Commission retains the authority to condition further, modify, 
suspend, terminate, or otherwise restrict any of the terms of the Order 
provided herein, in its discretion.

    Issued in Washington, DC, on October 26, 2017, by the 
Commission.
Christopher J. Kirkpatrick,
Secretary of the Commission.

Appendix to Order Establishing a New De Minimis Threshold Phase-In 
Termination Date--Commission Voting Summary

    On this matter, Chairman Giancarlo and Commissioner Quintenz 
voted in the affirmative. Commissioner Behnam voted in the negative.

[FR Doc. 2017-23660 Filed 10-30-17; 8:45 am]
 BILLING CODE 6351-01-P



                                                                                                                                                                                                      50309

                                             Rules and Regulations                                                                                          Federal Register
                                                                                                                                                            Vol. 82, No. 209

                                                                                                                                                            Tuesday, October 31, 2017



                                             This section of the FEDERAL REGISTER                    CFTC’s further definition of swap dealer               issued the Swap Dealer De Minimis
                                             contains regulatory documents having general            is provided in § 1.3(ggg).3 The de                     Exception Final Staff Report 10 on
                                             applicability and legal effect, most of which           minimis exception therein provides that                August 15, 2016 (‘‘Final Report,’’ and
                                             are keyed to and codified in the Code of                a person shall not be deemed to be a                   together with the Preliminary Report,
                                             Federal Regulations, which is published under           swap dealer unless its swap dealing
                                             50 titles pursuant to 44 U.S.C. 1510.                                                                          the ‘‘Staff Reports’’). The Staff Reports
                                                                                                     activity exceeds an aggregate gross                    analyzed the available swap data in
                                             The Code of Federal Regulations is sold by              notional amount threshold of $3 billion                conjunction with relevant policy
                                             the Superintendent of Documents.                        (measured over the prior 12-month                      considerations to assess alternative de
                                                                                                     period), subject to a phase-in period                  minimis threshold levels and other
                                                                                                     during which the gross notional amount
                                             COMMODITY FUTURES TRADING                                                                                      potential changes to the de minimis
                                                                                                     threshold is set at $8 billion.4 Absent
                                             COMMISSION                                                                                                     exception. The Staff Reports noted that
                                                                                                     further action by the Commission, the
                                                                                                     phase-in period is scheduled to                        the swap market data available, while
                                             17 CFR Part 1                                           terminate on December 31, 2018, at                     much improved since § 1.3(ggg) was
                                                                                                     which time the de minimis threshold                    first adopted, was still somewhat
                                             Order Establishing a New De Minimis                                                                            limited in providing detailed
                                                                                                     would decrease to $3 billion.5
                                             Threshold Phase-In Termination Date                        When § 1.3(ggg) was adopted,                        information for assessing appropriate
                                             AGENCY: Commodity Futures Trading                       establishing the $3 billion de minimis                 changes to the de minimis exception.
                                             Commission.                                             exception, the Commission explained                    For example, notional amounts could
                                             ACTION: Order.                                          that there was little swap dealing data                only be analyzed for the interest rate
                                                                                                     available that could be used to guide it               and credit default swap asset classes
                                             SUMMARY:   The Commodity Futures                        in setting a threshold level. The                      because, at the time, sufficient reliable
                                             Trading Commission (‘‘Commission’’ or                   Commission expected that the                           notional data was not available for the
                                             ‘‘CFTC’’) is issuing an order (‘‘Order’’),              implementation of swap data reporting                  other asset classes. As a further
                                             pursuant to the Commission regulation                   may enable reassessment of the de                      example, some of the data analyzed for
                                             establishing the de minimis exception to                minimis exception.6 Accordingly, in                    the Staff Reports had significant quality
                                             the swap dealer definition, to establish                § 1.3(ggg), the Commission directed                    issues. One of the ‘‘key issues’’
                                             December 31, 2019 as the new de                         CFTC staff to issue a report, after a                  identified in the Final Report for
                                             minimis threshold phase-in termination                  specified period of time, on topics                    Commission consideration was whether
                                             date.                                                   relating to the de minimis exception ‘‘as
                                                                                                                                                            to delay reduction of the de minimis
                                             DATES: Issued by the Commission on                      appropriate, based on the availability of
                                                                                                     data and information.’’ 7 Section 1.3(ggg)             threshold to allow efforts to improve
                                             October 26, 2017.
                                                                                                     further provides that after giving due                 data quality to progress so that the
                                             FOR FURTHER INFORMATION CONTACT:
                                                                                                     consideration to the report and any                    Commission could better determine the
                                             Matthew Kulkin, Director, 202–418–
                                                                                                     associated public comment, the                         appropriate de minimis threshold.11
                                             5213, mkulkin@cftc.gov; Erik Remmler,
                                             Deputy Director, 202–418–7630,                          Commission may by order establish a                       In October 2016, the Commission
                                             eremmler@cftc.gov; or Rajal Patel,                      termination date for the phase-in period               issued an order, pursuant to
                                             Associate Director, 202–418–5261,                       or propose through rulemaking                          § 1.3(ggg)(4)(ii)(C)(1), establishing
                                             rpatel@cftc.gov, Division of Swap Dealer                modifications to the de minimis                        December 31, 2018 as the de minimis
                                             and Intermediary Oversight, Commodity                   exception.8                                            threshold phase-in termination date,
                                             Futures Trading Commission, Three                          Staff issued for public comment the                 thereby extending the original phase-in
                                             Lafayette Centre, 1155 21st Street NW.,                 Swap Dealer De Minimis Exception                       period by one year (‘‘October 2016
                                             Washington, DC 20581.                                   Preliminary Report on November 18,                     Order’’).12 In the order, the Commission
                                                                                                     2015 (‘‘Preliminary Report’’).9 After
                                             SUPPLEMENTARY INFORMATION:                                                                                     stated that the phase-in period
                                                                                                     consideration of the public comments
                                                                                                     received, and further data analysis, staff             extension provides additional time for
                                             I. Background
                                                                                                                                                            further information to become available
                                                The Dodd-Frank Wall Street Reform                      3 17                                                 to more effectively reassess the de
                                                                                                            CFR 1.3(ggg).
                                             and Consumer Protection Act (‘‘Dodd-                      4 See                                                minimis exception.13 Given the twelve
                                                                                                             17 CFR 1.3(ggg)(4). See also Further
                                             Frank Act’’) 1 directed the CFTC and the                Definition of ‘‘Swap Dealer,’’ ‘‘Security-Based Swap   month lookback for calculating the swap
                                             U.S. Securities and Exchange                            Dealer,’’ ‘‘Major Swap Participant,’’ ‘‘Major
                                                                                                                                                            dealing notional amount, a firm may
                                             Commission to jointly further define the                Security-Based Swap Participant’’ and ‘‘Eligible
                                                                                                     Contract Participant’’, 77 FR 30596 (May 23, 2012).    need to start tracking its swap dealing
                                             term ‘‘swap dealer’’ and to include                     This Order does not impact the de minimis              activity on January 1, 2018 to determine
                                             therein a de minimis exception.2 The                    threshold for swaps with ‘‘special entities’’ as
                                                                                                     defined in the Commodity Exchange Act, section
                                                                                                                                                            whether its dealing activity would
                                                1 Public Law 111–203, 124 Stat. 1376 (2010). The     4s(h)(2)(C). 7 U.S.C. 6s(h)(2)(C).                     require it to register when the phase-in
                                             text of the Dodd-Frank Act can be accessed on the         5 Order Establishing De Minimis Threshold Phase-     period ends on December 31, 2018.
ethrower on DSK3G9T082PROD with RULES




                                             Commission’s Web site, at www.cftc.gov.                 In Termination Date, 81 FR 71605, 71607 (Oct. 18,
                                                2 See Dodd-Frank Act, sections 712(d) and 721.       2016).
                                                                                                                                                              10 Available at http://www.cftc.gov/idc/groups/
                                                                                                       6 See 77 FR at 30634, 30640.
                                             The definition of ‘‘swap dealer’’ can be found in                                                              public/@swaps/documents/file/dfreport_
                                                                                                       7 See 17 CFR 1.3(ggg)(4)(ii)(B).
                                             section 1a(49) of the Commodity Exchange Act and
                                                                                                       8 See 17 CFR 1.3(ggg)(4)(ii)(C).                     sddeminis081516.pdf.
                                             as further defined in § 1.3(ggg). 7 U.S.C. 1a(49) and                                                            11 Final Report at 26.
                                             17 CFR 1.3(ggg). The Commodity Exchange Act is            9 Available at http://www.cftc.gov/idc/groups/
                                                                                                                                                              12 81 FR 71605; 17 CFR 1.3(ggg)(4)(ii)(C)(1).
                                             at 7 U.S.C. 1, et seq. (2014), and is accessible on     public/@swaps/documents/file/dfreport_
                                             the Commission’s Web site at www.cftc.gov.              sddeminis_1115.pdf.                                      13 81 FR at 71607.




                                        VerDate Sep<11>2014   15:53 Oct 30, 2017   Jkt 244001   PO 00000   Frm 00001   Fmt 4700   Sfmt 4700   E:\FR\FM\31OCR1.SGM   31OCR1


                                             50310            Federal Register / Vol. 82, No. 209 / Tuesday, October 31, 2017 / Rules and Regulations

                                             II. New Phase-In Termination Date                       the swap data analysis currently                         1. Background
                                                As contemplated by the October 2016                  underway.                                                   As discussed above, § 1.3(ggg)(4)(i)
                                             Order, significant strides are being made                 Accordingly, the Commission believes                   provides an exception from the swap
                                             in updating, improving, and reassessing                 that it is prudent to extend the phase-                  dealer definition for persons who
                                             the available swap data regarding the                   in period by one year. This extension                    engage in a de minimis amount of swap
                                             swap marketplace in a more granular                     will provide additional time for                         dealing activity. Currently, under
                                             manner. Though this data analysis is                    Commission staff to conduct data                         § 1.3(ggg)(4)(i), a person shall not be
                                             ongoing, the Commission believes that it                analysis regarding the de minimis                        deemed to be a swap dealer unless its
                                             will in the near future have more                       exception, give market participants                      swap dealing activity exceeds an
                                             detailed data analysis to inform its                    further clarity regarding when they will                 aggregate gross notional amount
                                             consideration of possible modifications                 need to begin preparing for a change, if                 threshold of $3 billion (measured over
                                             to the de minimis exception.14 However,                 any, to the de minimis exception, and                    the prior 12-month period), subject to a
                                             any such modifications, if implemented,                 provide additional time for new                          phase-in period during which the gross
                                             would not become effective until some                   Commissioners and staff to become                        notional amount threshold is set at $8
                                             point in 2018, when the Commission                      better apprised of issues relevant to this               billion.18 The phase-in period would
                                             completes the proposal, public                          topic.                                                   have terminated on December 31, 2018,
                                             comment, and final rule amendment                       III. Conclusion and Order                                and the de minimis threshold would
                                             process pursuant to the Administrative                                                                           have decreased to $3 billion, absent this
                                                                                                       For the reasons discussed above, and
                                             Procedure Act.                                                                                                   Order.19 This would have required firms
                                                                                                     pursuant to its authority under
                                                This timing creates some uncertainty                                                                          to start tracking their swap activity
                                                                                                     § 1.3(ggg)(4)(ii)(C)(1), the Commission is
                                             for currently unregistered swap dealers                                                                          beginning January 1, 2018 to determine
                                                                                                     establishing December 31, 2019 as the
                                             that may be subject to registration if the                                                                       whether their dealing activity over the
                                                                                                     new termination date for the de minimis
                                             $3 billion de minimis threshold goes                                                                             course of that year would require them
                                                                                                     threshold phase-in period. The
                                             into effect on December 31, 2018. Such                                                                           to register as swap dealers.
                                                                                                     Commission notes that prior to the
                                             entities will not know what de minimis                                                                              The $3 billion threshold, which,
                                                                                                     termination of the phase-in period, the
                                             exception changes, if any, may become                                                                            absent this Order, would be effective on
                                                                                                     Commission plans to take further action
                                             effective. Given this uncertainty, firms                                                                         December 31, 2018, sets the baseline for
                                                                                                     regarding the de minimis threshold.
                                             that might be subject to registration if                                                                         the Commission’s consideration of the
                                             the de minimis threshold decreases to                   IV. Related Matters                                      costs and benefits of this Order.20
                                             $3 billion would need to start managing,                                                                         Accordingly, the Commission considers
                                                                                                     A. Paperwork Reduction Act
                                             and perhaps altering, their swap dealing                                                                         the costs and benefits that will result
                                             activity starting in January 2018 to                       The Paperwork Reduction Act                           from extending the phase-in period.
                                             remain below the $3 billion threshold                   (‘‘PRA’’) 16 imposes certain
                                                                                                     requirements on Federal agencies in                      2. General Cost and Benefit
                                             by December 31, 2018. Further, some
                                                                                                     connection with their conducting or                      Considerations
                                             firms might begin analyzing and
                                             adjusting their dealing activities prior to             sponsoring any collection of                                There are several policy objectives
                                             January 2018 if they do not want to be                  information as defined by the PRA. This                  underlying swap dealer regulation and
                                             subject to registration. Such changes in                Order does not impose any new                            the de minimis exception to the swap
                                             behavior could lead to reduced                          recordkeeping or information collection                  dealer definition. The primary policy
                                             competition, liquidity, and efficiency in               requirements, or other collections of                    objectives of swap dealer regulation
                                             the swap market, which may cause                        information that require approval of the                 include the reduction of systemic risk,
                                             disruptions for the firms and their swap                Office of Management and Budget under                    increased counterparty protections, and
                                             counterparties that might be                            the PRA.                                                 market efficiency, orderliness, and
                                             unnecessary depending on the outcome                                                                             transparency.21 Registered swap dealers
                                                                                                     B. Cost-Benefit Considerations
                                             of the continuing assessment of the de                                                                           are subject to a broad range of
                                             minimis exception.                                         Section 15(a) of the Commodity                        requirements, including, inter alia,
                                                Additionally, the Commission notes                   Exchange Act (‘‘CEA’’) requires the                      registration, internal and external
                                             that a year’s delay would provide                       Commission to consider the costs and                     business conduct standards, reporting,
                                             additional time for the new                             benefits of its actions before                           recordkeeping, risk management,
                                             Commissioners 15 and the new Director                   promulgating a regulation under the                      posting and collecting margin, and chief
                                             of the Division of Swap Dealer and                      CEA or issuing certain orders.17 Section                 compliance officer designation and
                                             Intermediary Oversight, all of whom                     15(a) further specifies that the costs and               responsibilities. As noted in the
                                             only joined the Commission in the last                  benefits shall be evaluated in light of                  § 1.3(ggg) adopting release, generally,
                                             two months, to better familiarize                       five broad areas of market and public                    the lower the de minimis threshold, the
                                             themselves with the issues relevant to                  concern: (i) Protection of market                        greater the number of entities that are
                                             the de minimis exception and results of                 participants and the public; (ii)                        subject to these requirements, which
                                                                                                     efficiency, competitiveness, and                         could decrease systemic risk, increase
                                                14 The Commission also notes that the continuing     financial integrity of futures markets;                  counterparty protections, and promote
                                             efforts by the Division of Market Oversight to          (iii) price discovery; (iv) sound risk                   swap market efficiency, orderliness, and
                                             improve data quality have improved data analysis        management practices; and (v) other                      transparency.22
                                             capabilities.                                           public interest considerations. In this
                                                15 See Brian Quintenz Sworn In as a
                                                                                                     section, the Commission considers the
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                                                                                                                                                                18 17 CFR 1.3(ggg)(4)(i). See generally 77 FR at
                                             Commissioner of the U.S. Commodity Futures
                                                                                                     costs and benefits resulting from its                    30626–35. See also note 4, supra.
                                             Trading Commission (Aug. 15, 2017), http://                                                                        19 See 81 FR 71605.
                                             www.cftc.gov/PressRoom/PressReleases/pr7602-17;         determinations with respect to the                         20 See 77 FR at 30702–14 (discussing the cost-
                                             Rostin Behnam Sworn In as a Commissioner of the         Section 15(a) factors.
                                             CFTC (Sep. 6, 2017), http://www.cftc.gov/                                                                        benefit considerations with regard to the final swap
                                             PressRoom/PressReleases/pr7610-17. Additionally,                                                                 dealer definition); 81 FR at 71607.
                                                                                                       16 44   U.S.C. 3501 et seq.                              21 77 FR at 30628–30, 30707–08.
                                             there are currently two additional Commission
                                             vacancies that may be filled soon.                        17 7   U.S.C. 19(a).                                     22 Id. at 30628–30, 30703, 30707–08.




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                                                               Federal Register / Vol. 82, No. 209 / Tuesday, October 31, 2017 / Rules and Regulations                                            50311

                                               The Commission also considers                         the regulation of swap dealers. The                   that they would otherwise have
                                             policy objectives furthered by a de                     Commission recognizes that the $3                     undertaken.
                                             minimis exception, which include                        billion de minimis threshold may result
                                                                                                                                                           (iii) Price Discovery
                                             regulatory certainty, allowing limited                  in more entities being required to
                                             ancillary dealing, encouraging new                      register as swap dealers compared to an                  The Commission preliminarily
                                             participants to enter the swap dealing                  $8 billion threshold, thereby extending               believes that a $3 billion de minimis
                                             market, and regulatory efficiency.23                    counterparty protections to a greater                 threshold may discourage participation
                                             Generally, the higher the de minimis                    number of market participants. Further,               of new swap dealers and ancillary
                                             threshold, the greater the number of                    swap dealer regulation is intended to                 dealing. If there are fewer entities
                                             entities that are able to engage in                     reduce systemic risk in the swap market               engaged in dealing, there may be a
                                             dealing activity without being required                 because registered swap dealers are                   negative effect on price discovery.
                                             to register, which could increase                       subject to a broad range of requirements,             (iv) Sound Risk Management
                                             competition and liquidity in the swap                   including, inter alia, requirements
                                             market.24 In addition, because                          applicable to internal and external                      The Commission notes that a $3
                                             competitive markets may be more                         business conduct standards, reporting                 billion de minimis threshold could lead
                                             efficient, a higher de minimis threshold                and recordkeeping, risk management,                   to better risk management practices
                                             might improve swap market efficiency.                   posting and collecting margin, and chief              because a greater number of entities
                                             Further, the Commission notes that it                   compliance officer designation and                    would be required by regulation to: (i)
                                             has been suggested that a higher                        responsibilities. Pursuant to the Dodd-               Develop and implement detailed risk
                                             threshold could allow the Commission                    Frank Act, the Commission has                         management programs; (ii) adhere to
                                             to expend its resources on entities with                proposed or adopted regulations for                   business conduct standards that reduce
                                             larger swap dealing activities warranting               swap dealers—including margin and                     operational and other risks; and (iii)
                                             more oversight. An alternative view is                  risk management requirements—                         satisfy margin requirements for
                                             that the de minimis threshold should be                 designed to mitigate the potential                    uncleared swaps.
                                             set based on policy independent of                      systemic risk inherent in the swap                    (v) Other Public Interest Considerations
                                             consideration of the Commission’s                       market. Therefore, the Commission
                                             resources.                                                                                                      The Commission has not identified
                                                                                                     recognizes that a lower de minimis                    any other public purpose considerations
                                                Extending the phase-in period by one                 threshold may result in more entities
                                             year will delay realization of the policy                                                                     for this Order.
                                                                                                     being required to register as swap
                                             benefits associated with the $3 billion                 dealers, thereby potentially further                  C. Antitrust Considerations
                                             de minimis threshold, but will also                     reducing systemic risk.
                                             extend the policy benefits associated                                                                            Section 15(b) of the CEA requires the
                                             with a higher de minimis threshold. The                 (ii) Efficiency, Competitiveness, and                 Commission to take into consideration
                                             additional time to adjust to the $3                     Financial Integrity of Markets                        the public interest to be protected by the
                                             billion de minimis threshold also would                                                                       antitrust laws and endeavor to take the
                                                                                                        Other goals of swap dealer regulation              least anticompetitive means of
                                             potentially increase regulatory certainty
                                                                                                     are swap market transparency,                         achieving the objectives of the CEA, in
                                             for some market participants. Given that
                                                                                                     orderliness, and efficiency. These                    issuing any order or adopting any
                                             the de minimis exception is subject to
                                                                                                     benefits are achieved through                         Commission rule or regulation. The
                                             a 12-month look-back, extending the
                                                                                                     regulations requiring, for example, swap              Commission does not anticipate that the
                                             phase-in period to December 31, 2019
                                                                                                     dealers to keep trading records and                   Order discussed herein will result in
                                             would allow entities that would
                                                                                                     report trades, provide counterparty                   anti-competitive behavior.
                                             potentially have to register as swap
                                                                                                     disclosures about swap risks and
                                             dealers additional time to adjust their                                                                       V. Order
                                                                                                     pricing, and undertake portfolio
                                             activities and prepare for the
                                             compliance obligations related to swap                  reconciliation and compression                          In light of the foregoing, it is ordered,
                                             dealer registration.                                    exercises. Accordingly, the Commission                pursuant to the Commission’s authority
                                                                                                     notes that a lower de minimis threshold               under § 1.3(ggg)(4)(ii)(C)(1), that the de
                                             3. Section 15(a)                                        may have a positive effect on the                     minimis threshold phase-in termination
                                                Section 15(a) of the CEA requires the                efficiency and integrity of the markets.              date shall be December 31, 2019.
                                             Commission to consider the effects of its                  However, the Commission also                         The Commission retains the authority
                                             actions in light of the following five                  recognizes that the efficiency and                    to condition further, modify, suspend,
                                             factors. This Order will delay the                      competitiveness of the swap market may                terminate, or otherwise restrict any of
                                             potential costs and benefits discussed                  be negatively impacted if the de                      the terms of the Order provided herein,
                                             below by one year.                                      minimis threshold is set too low by                   in its discretion.
                                                                                                     potentially increasing barriers to entry                Issued in Washington, DC, on October 26,
                                             (i) Protection of Market Participants and
                                                                                                     that may stifle competition and reduce                2017, by the Commission.
                                             the Public
                                                                                                     swap market efficiency. For example, if               Christopher J. Kirkpatrick,
                                                Providing regulatory protections for                 entities choose to reduce or cease their              Secretary of the Commission.
                                             swap counterparties who may be less                     swap dealing activities so that they
                                             experienced or knowledgeable about the                  would not need to register if the de                  Appendix to Order Establishing a New
                                             swap products offered by swap dealers                   minimis threshold decreases to $3                     De Minimis Threshold Phase-In
                                             (particularly end-users who use swaps                   billion, the number or availability of                Termination Date—Commission Voting
                                             for hedging or investment purposes) is                  market makers for swaps may be                        Summary
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                                             a fundamental policy goal advanced by                   reduced, which could lead to increased                   On this matter, Chairman Giancarlo and
                                                                                                     costs for potential counterparties and                Commissioner Quintenz voted in the
                                               23 Id.
                                                    at 30628–30, 30707–08.                           end-users through having to pay higher                affirmative. Commissioner Behnam voted in
                                               24 Alternatively,
                                                               the Commission notes that a
                                                                                                     spreads when undertaking swap                         the negative.
                                             lower de minimis threshold may lead to potential
                                             changes in market behavior, including, for example,     transactions or foregoing the benefits of             [FR Doc. 2017–23660 Filed 10–30–17; 8:45 am]
                                             product innovation.                                     engaging in certain swap transactions                 BILLING CODE 6351–01–P




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Document Created: 2018-10-25 10:19:00
Document Modified: 2018-10-25 10:19:00
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionOrder.
DatesIssued by the Commission on October 26, 2017.
ContactMatthew Kulkin, Director, 202-418- 5213, [email protected]; Erik Remmler, Deputy Director, 202-418-7630, [email protected]; or Rajal Patel, Associate Director, 202-418-5261, [email protected], Division of Swap Dealer and Intermediary Oversight, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW., Washington, DC 20581.
FR Citation82 FR 50309 

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